Muhammad v. Pico

• Decision Date: 05 August 2003
• Docket Number: 02 Civ. 1052 (AJP).
• Parties: ISMAA'IYL F. MUHAMMAD, Plaintiff, v. JOSE PICO, LT. DANIEL CONNOLLY, BETTY EASTER, FAHIYM MAHMUD (MAHMOOD), DONALD SELSKY, SGT. JOHN DOLAN, & NORMAN BALTUCH, Defendants.
• Court: U.S. District Court — Southern District of New York

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ISMAA'IYL F. MUHAMMAD, Plaintiff, v. JOSE PICO, LT. DANIEL CONNOLLY, BETTY EASTER, FAHIYM MAHMUD (MAHMOOD), DONALD SELSKY, SGT. JOHN DOLAN, & NORMAN BALTUCH, Defendants.

02 Civ. 1052 (AJP).

United States District Court Southern District of New York.

August 5, 2003.

OPINION AND ORDER

ANDREW J. PECK, United States Magistrate Judge:

Pro se plaintiff Ismaa'iyl F. Muhammad, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights by various DOCS employees. Muhammad alleges that (1) Fahiym Mahmud, Lieutenant Daniel Connolly, and Sergeant John Dolan conspired to violate his First Amendment free exercise of religion rights; and that (2) defendants Jose Pico, Lt. Connolly, Sgt. Dolan, Donald Selsky, Betty Easter, and Norman Baltuch violated his Fourteenth Amendment procedural due process rights in connection with a Tier III disciplinary hearing. (See generally Dkt. No. 2: Compl.; Dkt. No. 23: Am. Compl. ¶ 4 "Statement of Claim.") After the close of discovery, defendants Pico, Connolly, Easter, Mahmud, Selsky, and Dolan moved for summary judgment. (Dkt. Nos. 36-47: Defs.' S.J. Mot. Papers.) Defendants Easter, Dolan, and Baltuch also moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1), (2), and (6), claiming (1) lack of personal involvement by Easter; (2) lack of personal jurisdiction over Dolan; and (3) expiration of the statute of limitations as to Baltuch. (Dkt. Nos. 50-51: Notice of Mot. to Dismiss & Br..)

The parties have consented to disposition of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 28.)

For the reasons set forth below: (1) Muhammad's free exercise and conspiracy claims are dismissed without prejudice for failure to exhaust administrative remedies; (2) defendants' summary judgment motion on Muhammad's due process claim is denied due to lack of evidence in the record and issues of material fact in dispute; (3) defendants Sgt. Dolan and Lt. Connolly are granted summary judgment dismissing Muhammad's due process claim for lack of personal involvement; (4) defendant Easter's motion to dismiss Muhammad's due process claim is denied; and (5) defendant Baltuch's motion to dismiss Muhammad's due process claim is denied because the amended complaint relates back to the timely-filed original complaint.

FACTS

Muhammad, who is currently incarcerated at Clinton Correctional Facility, was an inmate at Green Haven and Downstate Correctional Facilities when the events at issue took place in May 1997. (Dkt. No. 23: Am. Compl. ¶ 4 "Statement of Claim"; Dkt. No. 5: Muhammad 2/21/02 Aff. ¶ 3; Dkt. No. 40: Defs. 56.1 Stmt. ¶¶ 18, 22, 25.) Muhammad is serving a 1984 sentence of twenty-five years to life imprisonment for second degree murder. (Dkt. No. 38: Singleton Aff. Ex. B: Muhammad Dep. at 12-13.)

The Defendants

At the time of the events at issue, defendants Connolly, Mahmud, and Dolan were employed at Green Haven: Connolly as a Lieutenant (Dkt. No. 41: Connolly Aff. ¶ 1), Mahmud as a Muslim chaplain, or imam¹ (Dkt. No. 38: Singleton Aff. Ex. B: Muhammad Dep. at 40), and Dolan as a Sergeant (Dkt. No. 42: Dolan Aff. ¶ 1).² Defendants Easter and Baltuch were employed at Downstate: Easter as a Corrections Officer³ (Dkt. No. 21: 2/14/03 Conf. Tr. at 11), and Baltuch as a Corrections Counselor (Dkt. No. 44: Pico Aff. ¶ 7). Defendant Pico was a DOCS Commissioner's Hearing Officer (Pico Aff. ¶ 2), and defendant Selsky was (and still is) DOCS' Director of Special Housing/Inmate Disciplinary Program (Dkt. No. 45: Selsky Aff. ¶ 1).

Inmate Hostile Reaction to the Cell Shop Program

Green Haven Correctional Facility has an Industry Program employing two hundred to two hundred fifty inmates. (Dkt. No. 43: Smith Aff. ¶ 5.) In May 1997, Green Haven's work shop introduced a new program, employing thirty to forty-five inmates trained in welding, plumbing mechanical engineering, and electrical wiring, to install prefabricated modular prison cells.⁴ (Id. ¶¶ 4, 5, 8.) Shortly after the introduction of the cell shop program, many inmates refused to continue to participate in the Industry Program. (Id. ¶ 8.) George Smith, the Senior Industrial Superintendent responsible for supervising the inmates employed in the cell shop, learned from some of the inmate employees that they were being harassed by other inmates and threatened with violence if they continued to build cells. (Id. ¶¶ 1, 8; see also Dkt. No. 41: Connolly Aff. ¶¶ 5-8.) According to Supt. Smith, the reason given for the threatened violence was that "the pre-fabricated cells being constructed would eventually be used to house additional prisoners, including family members of current inmates at Green Haven." (Smith Aff. ¶ 9.)

Supt. Smith stated that the threats against these inmates created a very tense atmosphere and led to a sharp decline in the cell shop's recruitment of new inmates. (Id. ¶ 11.) What was once a sought-after, high-paid work detail with little turnover became a source of serious concern for DOCS, with the inmate and civilian employees fearful of being assaulted by inmates opposed to the cell shop program. (Id. ¶¶ 5, 11-13.) As a result of the threats, Green Haven officials were forced to take measures to protect the cell shop inmate-employees, including moving them from the general population to a self-contained unit, and partitioning off the assembly shop with a curtain to prevent any other inmates from looking into the shop and determining who was working in the cell shop. (Smith Aff. ¶ 10; Dkt. No. 41: Connolly Aff. ¶ 9.) Sergeant George Schwartzman and defendant Sgt. John Dolan were ordered to commence an investigation to identify the instigators of the inmate work stoppage and the "'enforcers'" who carried out the threats. (Connolly Aff. ¶ 6.)

The Investigation

In the course of their investigation, Sgt. Schwartzman and Sgt. Dolan interviewed a number of confidential informants and obtained information regarding the threats. (Dkt. No. 42: Dolan Aff. ¶¶ 5-6.) According to Sgt. Dolan, these "informants came forward because they did not like the idea of being terrorized" and because "some inmates in the cell shop wanted the opportunity to earn the higher wages;" the "informants were not offered any favors by the administration" in exchange for the information. (Id. ¶ 8.) According to Sgt. Dolan, the informants claimed that Muhammad was one of about ten inmates who played a part in the "Terror Campaign." (Dolan Aff. ¶ 6.) Specifically, they stated that Muhammad was "one of those instigating a demonstration to stop inmates from building cells." (Id.) Lt. Connolly, who was responsible for supervising all uniformed officers (Dkt. No. 41: Connolly Aff. ¶ 1), reviewed the investigation and verified that the confidential informants were credible and reliable, and that independent sources corroborated the information they provided. (Connolly Aff. ¶ 6.) Lt. Connolly personally interviewed some of the cell shop inmate-employees to confirm the investigation's findings. (Id. ¶¶ 7-8.)

Following Lt. Connolly's review of the investigation, he concluded that Muhammad and nine other inmates were involved in the "Terror Campaign." (See Connolly Aff. ¶ 10 & Ex. A: 5/8/97 Lt. Connolly Memo to Superintendent Artuz; see also Dkt. No. 42: Dolan Aff. ¶ 6.) As a result, Sgt. Dolan issued Muhammad an "Inmate Misbehavior Report" on May 9, 1997, charging him with a violation of Rule 104.12.⁵ (Dolan Aff. ¶ 7.) The Misbehavior Report stated that:

During an interview with an inmate as to why he would not work in the metal assembly shop (cell shop), he informed Sgt. Sch[w]artzmann and myself on a confidential basis, that various inmates and groups were making threats against those who would build cells. Remarks such as "anyone who would build cells should/would be cut." "You build cells, we will burn yours." Inmate MUHAMMAD 84 A 3231 was identified as one of the inmates in this campaign of terror by this source. Due to the fact that this source was unproven, other sources who have proven reliable in the past were questioned in regards to this situation. These sources confirmed inmate MUHAMM[A]D's involvement in this campaign of terror.

This has been an ongoing investigation.

(Dolan Aff. Ex. A: 5/9/97 Inmate Misbehavior Report.) Because the administration perceived the threats and their effect on the cell building program to be a serious problem for the facility, Christopher Artuz, then Superintendent of Green Haven, directed that the instigators and enforcers be transferred to other correctional facilities. (Connolly Aff. ¶ 11 & Ex. B; see also Dolan Aff. ¶ 9.)⁶

Muhammad's Disciplinary Hearing, Sentencing, and Administrative Appeals

On May 10, 1997, all inmates believed to have been involved in the "Terror Campaign" were transferred out of Green Haven. (Dkt. No. 42: Dolan Aff. ¶ 9; see also Dkt. No. 41: Connolly Aff. ¶ 11.) Muhammad was transferred to Downstate Correctional Facility. (Dkt. No. 23: Am. Compl. ¶ 4 "Statement of Claim.") Also on May 10, Muhammad was served with a copy of the May 9, 1997 Misbehavior Report (Dkt. No. 44: Pico Aff. ¶ 7 & Ex. B at 2), which put him on notice that he would be receiving a Tier III disciplinary hearing⁷ during which a hearing officer would "hear and determine allegations of rule violations contained in the misbehavior reports. . . ." 7 N.Y.C.R.R. § 252.2. Pursuant to 7 N.Y.C.R.R. § 254.4,⁸ defendant Corrections Counselor Baltuch was assigned to provide Muhammad with employee assistance in preparing for the Tier III hearing. (Pico Aff. ¶ 7.) The misbehavior report was referred to the facility superintendent for designation of a hearing officer to conduct a Superintendent's Hearing (i.e., a Tier III hearing), and defendant Jose Pico was designated to preside over the hearing. (Pico Aff. ¶ 8.)

Muhammad's Tier III disciplinary hearing began on May 13, 1997 at...